Desarrollo de la modalidad No presencial

Fees for preferred suppliers and private counsel

Apart from a 5 per cent increase in fees in September 2000 and a further 5 per cent increase in April 2001, there have been no substantial changes in the LAQ scale of fees since the 1995 report. The QLS is concerned that the fees paid by LAQ to preferred suppliers are insufficient to sustain a viable legal aid practice. In its submission to the CJC, the QLS commented:

For too long legal aid rates have fallen so far below commercially acceptable rates that legal aid has depended on the goodwill of a large number of practitioners to suffer through doing quality work for abysmally low rates of pay … Not only is the private legal profession subsidising legal aid to a massive degree in undertaking legally aided work, but solicitors are doing it in circumstances where they have to work enormous hours for very poor returns from legal aid work. 37

In the 1980s, LAQ paid $60 per hour for Magistrates Court matters, with the hourly rate forming the basis for calculating other fee items. In the past 15 years that hourly rate has increased only $6 to $66 per hour.

The Bar Association of Queensland is also critical of the LAQ fee structure, commenting in its submission on LAQ’s September 2000 consultation paper, Revision of Criminal Law Fees, that:

It has been long acknowledged that the fee scale applicable to legal aid in criminal law has been inadequate and falls well below what would be reasonably regarded as proper remuneration for the work expected to deal with even the simplest of cases, let alone the more difficult ones … The difficulty with the extent to which the fee

scale has tended to lag behind the amount of a reasonable fee is the obvious financial pressure which is placed on a practitioner (in conflict with the interests of the client and the practitioner’s duty) in providing proper service to his or her client.

In its submission to the CJC, the Bar Association has referred to a number of issues in relation to the fees paid in Committals Project cases, including:

• The perception that the set fee of $500 available to solicitors to deal with a matter up to and including the first day of a committal is paid in cases of hand-up committals and ‘nothing is achieved before the matter is resolved in the District Court (often by a guilty plea to charges that could have been dealt with summarily)’.

• Generally speaking, aid will not be granted for the involvement of a barrister for committal proceedings:

Often the client is represented by a Solicitor who is too inexperienced or busy or unwilling to undertake negotiations with the prosecution and the matter, in the interests of the client, is taken to the District Court where aid to engage a Barrister will be available. Some ‘hand up’ cases do go to trial, but one or two vital witnesses who should have been examined at Committal have not been examined. Such a situation is not in the best interests of the client. The view of this Association is that there is the potential for much more to be achieved in respect of the committals project, with the provision of proper funding, including sufficient funding to allow for the involvement of a Barrister in appropriate cases.

The Bar Association of Queensland has also observed that, at both the Supreme Court and the District Court levels, the fees paid to counsel by legal aid agencies in the various Australian States and Territories are lowest, and in some cases significantly so, in Queensland:

The differences at District Court level are obviously the most striking and it may be noted that, in Queensland, it is at this level that the overwhelming majority of criminal matters are dealt with.38

LAQ has acknowledged that the current fees paid by LAQ to private legal practitioners for substantive work are comparatively low:

The fees payable for the substantive legal work undertaken by the solicitor (i.e. preparation and appearance) are quite low when compared with the add-on events such as conferences, mentions, negotiations, etc.

For example, the solicitor preparation fee for a murder trial is fixed at $300, while conferences and negotiations attract a fee of $99 each and mentions $104. While overall the fees are low, the conference, negotiation and mention fees are out of proportion with the preparation and appearance fees.39

At the Law Society’s Legal Aid/Criminal Law Forum on 5 December 2000, Justice Holmes of the Queensland Supreme Court observed that:

Legal Aid must be unique in the Western World as a form of remuneration which has not increased for almost a decade.

A further concern about LAQ fees paid to private practitioners is the difficulty in determining what the final fee will be. LAQ has observed:

The standard grants of aid make a reasonable estimate of the steps required to bring an average matter to conclusion. The estimated fee for the case is accrued at the time the grant of aid is made. Historically, it is known that significant numbers of cases are not disposed of in the manner set out in the grant of aid. This results in some under-utilisation of the available commitment.

For example, 60% of matters funded in the District Court are set down for trial and trial grants are allocated for these matters. 65% of the matters set down for trial are resolved by way of plea and only a proportion of the commitment available on the grant is payable. At the end of June 2000 this proportion was approximately 39%. The significant issue for legal practitioners is the absence of certainty of ultimate remuneration for work done.40

Concern has also been expressed about the processing of fee payments when extensions are sought for each stage of a matter. LAQ has noted:

A practitioner is required to seek an extension for each stage of a matter before proceeding. If a practitioner proceeds to the next stage without approval, there is no certainty of payment as the practitioner is acting without a grant of aid. An environment has developed where a practitioner may not proceed until approval has been given. Also, for each extension, a proforma invoice is required which adds to the administrative burden for the legal practitioner as well as for Legal Aid Queensland.41

Fees paid by privately funded clients

A common view of practitioners expressed in the 1995 report was that the rates paid by the LAC in the criminal law area compared unfavourably with what private clients were prepared to pay: in part because with private clients it is possible to charge for more preparation time, and in part because hourly and daily rates for private work are significantly higher.

Since 1995 there have been a number of attempts to compare the costs of undertaking legal work that is funded by legal aid with the costs of undertaking similar work for privately funded clients. The results of those analyses have been varied.

From their survey of legal practitioners in Queensland, Dewar et al. concluded:

There is no evidence to suggest that privately paying clients are subsidising the system;

there is evidence that legal aid work alone is not profitable, making certain assumptions about drawings and return on capital, and that lawyers who do legal aid work are able to do so only because they have other profitable areas of privately paying work;

if some lawyers who currently do legal aid work gave it up and replaced it with privately paying work, they would be more profitable. This suggests the existence of a subsidy in some cases, although it is premised on an assumption about the availability of privately paying work to replace legal aid work. It also overlooks the fact that there may be other rational reasons for continuing to do legal aid work even though it is presently unprofitable.42 _{[Emphasis added.]}

Primarily in the context of family law work, a recent study conducted for the Justice Research Centre in New South Wales compared services received by legally-aided clients and by self-funded clients in New South Wales, South Australia, Victoria and Queensland. The study found:

More than half of the legal aid cases handled by private solicitors were subsidised by the solicitor’s firm, in terms of the firm incurring costs for disbursements, agent’s fees and barrister’s fees that were not covered by the legal aid grant, and the solicitor spending more hours on the case than the maximum that could be claimed from Legal Aid … legal aid work tends to be undertaken by the more junior solicitor/s. Solicitors who have been in practice longer undertake a lower proportion of legal aid work … Solicitors appear to spend less time with the client and less time preparing documents in legal aid cases, but otherwise there was no difference in the quantity or quality of services provided by private solicitors to legally aided and self-funding clients. In response to legal aid funding constraints, private solicitors tend to choose either to maintain the standard of their legal aid work as a matter of policy, or to quit legal aid work altogether.43 _{[Emphasis added.]}

The QLS has commissioned a study from the Queensland University of Technology Business Faculty to compare the work performed by LAQ and three preferred supplier firms for the purpose of assessing the real cost of legal aid work. The results of the project are expected some time later in 2001.

The QLS has argued that what LAQ pays private legal practitioners is not the ‘true worth’ of the work undertaken:

… there is a vast disparity between what would be paid on Legal Aid … [and] what is paid by way of private fees … even measured against scale fees, which are rarely these days applied, Legal Aid work is well and truly undervalued. The other point is that, if there was not Legal Aid, clients would be faced with a choice of paying the fees the practitioners would normally charge or representing themselves. On that test, there is no way that the rates struck with clients would be as low as Legal Aid rates. 44

During the consultations for this report, one private legal practitioner informed the CJC that his firm could not provide the same service to legal aid clients as it could to privately funded clients without absorbing the costs within the firm. The funds provided by LAQ do not match the fees that private clients are charged for the same work. As a result, more junior staff are allocated to preparation and appearances. For example, the practitioner may charge a private client, say, $15,000 to undertake the same work that LAQ would pay less than $1000 for on behalf of a legal aid client.45 _{Private clients are on retainer}

agreements with hourly rates, whereas the LAQ funding is for a block amount, no matter how much work is undertaken and no matter how complex the issues in the trial might be. The privately funded defendant will be guaranteed a well-researched and well- presented representation. However, there is no financial incentive to do the same level of work for a legal aid client as for a privately funded client, although some practitioners may be prepared to, in effect, subsidise the legal aid client with the higher fees charged to privately funded clients.46_{If this happens, the burden of providing representation to}

indigent defendants is placed in part on other clients of the legal practitioner. If it does not happen, then it could be argued that legal aid clients of private legal practitioners are being given an inferior level of representation.

In the 1995 report (pp. 62–63), in response to the belief of some practitioners that privately funded criminal law work is generally better paid than legally aided work, the CJC noted: • In the criminal law area in particular, the LAC dominates the market for legal services. Few practitioners are in a position to do substantial amounts of privately funded criminal law work for the simple reason that there is not much of that type of work available. Hence it is erroneous to assume that the rates paid by private clients in some way provide a better indication of the ‘true worth’ or ‘market value’ of legal work than the rates paid by the LAC.

• If it was left to ‘the market’ to determine rates for criminal law work without the intervention of the LAC (in its capacity as the dominant purchaser of services) it is quite probable that the rates would be below what they are now. Most defendants in criminal matters have only very limited resources at their disposal and, if required to fund their own defence, would almost certainly pay less than the LAC.

• Arguably, in the final analysis, the only basis for determining whether fees are adequate is whether practitioners are willing and able to provide an acceptable level of service at the rates offered by the LAC. Clearly, there are still many practitioners willing to take on legally aided work, although many others have dropped out of the market. Whether the service being delivered is of sufficient quality is an issue which is addressed below.

It is arguable that these comments are as apt in 2001 as they were in 1995.

Fees for additional criminal costs

LAQ’s Scale of Fees for Criminal Matters relates mainly to the payment of fees to legal practitioners for case preparation and court attendance. There is also provision for the payment of conferences, negotiations, viewing the crime scene and prison visits. Although there is no express provision for the payment of any expenses incurred in the preparation for trial, it is open to practitioners to make application to LAQ for the payment of such expenses. LAQ has the discretion to fund such items as DNA tests, psychiatrists’ and psychologists’ reports and other expert reports. However, members of the private legal profession have informed the CJC of difficulties in accessing such funding, leading to the impression that there are insufficient LAQ funds available for what would be regarded as reasonable expenses in privately funded criminal matters.47

During a meeting with representatives from community legal centres (CLCs), the opinion was expressed that there are no funds available from LAQ for expert reports on, for example, mental health or domestic violence aspects of criminal matters. A representative of the Women’s Legal Service explained the need for lawyers and a wide range of experts to work together in such matters to provide a just outcome for clients. There is an impression that LAQ has a stereotypical attitude to engaging certain expert witnesses. For example, it has been very difficult to obtain legal aid funds to engage a social worker or academic as an expert witness as LAQ has been reluctant to consider paying for

expert witnesses beyond the mainstream professions of psychologist, psychiatrist, medical practitioner and the like. Nevertheless, LAQ has advised the CJC that:

Given the funding implications [of expert reports], requests are vetted so it is certainly not open slather. For example, in a recent high-profile murder trial, approval was given to engage overseas experts where necessary. DNA experts have similarly been approved. Any assertion that criminal law clients are denied the opportunity to pursue valid areas of defence is not correct. Provided sufficient justification is provided for the engagement of an expert, approval is given. 48

Review of LAQ criminal law fee scales

As outlined in the discussion of fees in chapter 2 of this report, in September 2000, LAQ released Revision of Criminal Law Fees: A Consultation Paper. The consultation paper was developed in response to concern about the level of fees paid to legal practitioners and also in response to a number of process issues relating to the payment of fees, such as the difficulty of determining the final fee and lack of certainty about how much would ultimately be paid for work done.

The consultation paper set out four options for reform of the fee structure:

1. Retain the present fee structure and processing systems, but increase the amounts in the scale by a further percentage figure.

2. Replace the present event scale (as defined in chapter 2) with a series of lump-sum grants that relate to the level of representation provided — for example, summary plea, District Court trial, Magistrates Court committal, Supreme Court sentence, appeal to Court of Appeal.

3. Replace the present event scale with a series of lump-sum grants based on the way the cases in each category of offences were dealt with.

4. Replace the current event scale for counsel undertaking criminal circuit work with a daily fee. The consultation paper suggested that this option could stand alone or be adopted in conjunction with the options detailed above.

The consultation paper was circulated within the legal profession and was the subject of a joint Queensland Law Society–Bar Association of Queensland forum in December 2000.

The legal profession’s response to LAQ’s Consultation Paper on Revision of Criminal Law Fees

In relation to options 2 and 3 above (that is, lump-sum ‘representation grants’ that, generally, would provide a fixed fee as the total fee for attendances, irrespective of whether counsel are retained and irrespective of the amount of work involved or the time taken), the Bar Association of Queensland suggested that the proposal:

provides a bias against the provision of proper legal services to the underprivileged … In essence, the proposal creates a financial incentive to practitioners to provide minimal services to a client, regardless of that client’s needs. Equally, it imposes a significant burden on legal practitioners who provide more than a minimal level of service, in cases where that is called for.49

More specifically, the Bar Association noted:

What must in the end be recognised is a need for the system of administration of payments to legal practitioners to recognise and easily allow for the need to properly recompense the practitioner for the work actually done, within the confines of the applicable scale. Measures which arbitrarily limit the available payments depending upon administrative steps which have been taken, and which provide as a matter of course for standard proforma claims for remuneration, have an obvious tendency to frustrate the proper remuneration of the practitioner in cases which are other than